United States v. Kesselman

UNITED STATES OF AMERICA, Plaintiff/Respondent,v.IRAN MICHAEL KESSELMAN, Defendant/Movant.

ORDER

Brian
Morris United States District Court Judge

This
case comes before the Court on Defendant/Movant
Kesselman's amended motion to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. § 2255.
Kesselman is a federal prisoner proceeding with counsel. The
United States has filed an Answer and Kesselman a Reply.
Kesselman seeks a new sentencing hearing.

I.
Background

A grand
jury indicted Kesselman on one count of conspiracy to possess
500 grams or more of a substance containing methamphetamine
with intent to distribute in violation of 21 U.S.C.
§§ 846 and 841(a)(1); and one count of possessing
500 grams or more of a substance containing methamphetamine
with intent to distribute it, or aiding and abetting such
possession in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. The offenses were alleged to have occurred
between February 2008 and July 2012. (Indictment, Doc. 1 at
2-3). If convicted on Count 1 or Count 2, Kesselman faced a
ten-year mandatory minimum sentence and a maximum sentence of
life in prison. 21 U.S.C. § 841(b)(1)(A)(viii).

Kesselman
and the United States filed a plea agreement. In exchange for
dismissal of the Indictment, Kesselman pled guilty to a
superseding Information charging him with one count of
conspiracy to possess an unspecified quantity of
methamphetamine. The maximum penalty under the Superseding
Information was 20 years in prison. No. mandatory minimum
term applied. See 21 U.S.C. § 841(b)(1)(C). The
United States filed an offer of proof with the plea
agreement. The offer of proof stated, in part, that the
Government could present evidence that “[m]ore than 30
ounces, ” or 850.5 grams, “of a substance
containing methamphetamine was involved in this
conspiracy.” (Offer of Proof, Doc. 50 at 4 ¶ 4).

Kesselman
pled guilty in open court on September 10, 2013. (Minutes,
Doc. 58). Asked whether he disagreed with anything in the
offer of proof, Kesselman responded: “It's just the
quantity. It seems to be way, way out of line, and I
don't think there's any proof of that kind of
quantity.” (Change of Plea Tr., Doc. 93 at 30:22-31:6).
Asked what he thought the quantity was, Kesselman said,
“I think it would be about 14 ounces [396.9 grams]. It
could be in that range there.” (Id. at
31:15-21).

The
United States Probation Office drafted a presentence report.
Kesselman did not object to its findings either in his
sentencing memorandum or at sentencing. Kesselman asked
instead that the Court limit the sentence to 180 months in
view of Kesselman's age. (Sentencing Mem., Doc. 71 at 3;
Sentencing Tr., Doc. 97 at 4:4-10).

Kesselman's
base offense level of 34 corresponded to his responsibility
for 1.5 to 5 kilograms of methamphetamine. Kesselman also
received a two-level upward adjustment as a leader or
organizer and a three-level downward adjustment for
acceptance of responsibility. His total offense level landed
at 33. A level 33 translated to a criminal history category
of VI.

In
light of the 20-year statutory maximum, the advisory
guideline range was reduced from 235 to 290 months to 235 to
240 months. U.S.S.G. § 5G1.1(c)(1). Judge Haddon found
the appropriate sentence was 240 months. Judge Haddon reduced
that term by 16 months to account for time Kesselman already
had served on a concurrent state sentence. See
U.S.S.G. § 5G1.3(b). The Court sentenced Kesselman to
serve 224 months in prison, concurrent with his state
sentence, followed by a three-year term of supervised
release. (Minutes, Doc. 77; Judgment, Doc. 78 at 2-3;
Sentencing Tr., Doc. 97 at 4:16-5:12, 16:5-23).

Kesselman
appealed. Counsel filed a motion to withdraw. See Anders
v. California, 386 U.S. 738 (1967). After independently
reviewing the record, the Ninth Circuit determined that no
arguable basis for relief against the conviction existed and
affirmed it. The Ninth Circuit also enforced Kesselman's
waiver of his right to appeal the sentence and dismissed that
portion of the appeal. (See Mem., Doc. 110 at 1-2,
United States v. Kesselman, No. 13-30375 (9th Cir.
Aug. 28, 2014)).

Kesselman
filed a motion for sentence reduction under 18 U.S.C. §
3582(c)(2) and Amendments 782 and 788 to the United States
Sentencing Guidelines on March 6, 2015. Application of the
Amendments lowered Kesselman's base offense level from 34
to 32. The Court imposed an amended sentence of 215 months.
(Am. Judgment, Doc. 140 at 1).

Kesselman
signed his motion under 28 U.S.C. § 2255 on November 18,
2015. (Mot. § 2255, Doc. 149 at 6). The Court will
assume that he mailed it that day. Houston v. Lack,
487 U.S. 266, 270-71 (1988) (establishing prison mailbox
rule).

II.
Claims

Kesselman
alleges that counsel provided ineffective assistance of
counsel at sentencing because he failed to object to the drug
quantity and failed to object to a two-level enhancement for
a leading or organizing role in the conspiracy. Kesselman
contends that counsel should have advised the sentencing
court of his efforts to cooperate with law enforcement and
asserts that he suffered prejudice from counsel's
cumulative errors. (See Am. § 2255 Mot., Doc.
168 at 17, 21, 29, 33).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Strickland
v. Washington, 466 U.S. 668 (1984), governs these
claims. At this stage, Kesselman must allege facts sufficient
to support an inference that counsel&#39;s performance fell
below an objective standard of reasonableness. Id.
at 687-88. He also must show &ldquo;a reasonable probability
that, but for counsel&#39;s unprofessional errors, the result
of the proceeding would have been different.&rdquo;
Id. at 694. “A reasonable probability is a
...

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